Last week, EPA filed its brief in opposition to the petition of twenty states for a writ of certiorari, arguing against Supreme Court review of the D.C. Circuit’s decision not to vacate the Mercury and Air Toxics Standards (MATS) while EPA considered costs of the rule. EPA makes four main arguments:
- The state petitioners lack standing to bring this challenge. EPA argues that because MATS establishes substantive standards, rather than directly regulate the petitioners (unlike the CPP, which does impose obligations on states), the states are not able to show harm to any of their legally protected interests, a necessary showing for standing to obtain judicial review.
- EPA’s issuance of a supplemental finding makes this case moot. The D.C. Circuit decided not to vacate MATS pending EPA’s consideration of costs. EPA has since finalized this analysis, so EPA argues any decision on whether or not the D.C. Circuit’s decision not to vacate was appropriate would have no effect on the ongoing validity of MATS.
- The D.C. Circuit’s decision was a valid exercise of discretion under the Clean Air Act judicial review provision.
- The D.C. Circuit’s decision is consistent with other circuit court decisions concerning when remand to an agency without vacatur is appropriate.
A group of states, local governments, and public health and environmental organizations filed a brief* in support of EPA. They make similar arguments to EPA’s—that EPA’s supplemental finding renders the interim remedy question moot, that the Clean Air Act gives the court discretion, that there is no circuit split among courts of appeal, and that remanding to EPA without vacatur did not repudiate the Supreme Court’s Michigan v. EPA ruling.
An industry group also filed a brief* in support of EPA. This group of generators argues that the industry has come into compliance with MATS over the past four years, and that any interruption would “jeopardize the investment-backed expectations of the industry.” They argue that the states petitioning for certiorari have not invested in complying with MATS—unlike industry—and “have nothing at stake.” In earlier challenges to MATS, other industry players sided with the states, which made the states’ injury (or lack thereof) less of an issue.
*Copies of these briefs were obtained from S&P Global.